R (on the application of Privacy International) v Investigatory Powers Tribunal and others

The Supreme Court has given judgment in a landmark constitutional case which raised the issue of whether section 67(8) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) had the effect of “ousting” the supervisory jurisdiction of the High Court over decisions of the Investigatory Powers Tribunal (“IPT”). The Supreme Court held that decisions of the IPT were amenable to judicial review by the High Court, reversing the decisions of the Divisional Court and Court of Appeal.

The IPT is a specialist statutory tribunal of limited jurisdiction created to hear and determine complaints relating to the use of investigatory powers by (amongst others) the intelligence services. The underlying proceedings arose out of a decision on a preliminary issue of law concerning the power of the Secretary of State, under section 5 of the Intelligence Services Act 1994, to issue a “thematic” warrant authorising “computer network exploration” – broadly speaking, hacking of computers including mobile telephones and network infrastructure – in respect of a broad class of property. The Appellant, Privacy International, argued that the IPT’s interpretation was inconsistent with Convention rights and challenged the decision by way of judicial review. Lang J directed the hearing of a preliminary issue as to whether the High Court’s jurisdiction to hear the claim was ousted by section 67(8) RIPA.

Section 67(8) RIPA provides:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

The Divisional Court ([2017] EWHC 114 (Admin)) and the Court of Appeal ([2018] 1 WLR 2572) held that the effect of section 67(8) was to preclude judicial review. Leggatt J, while not formally dissenting, inclined to a different view on the grounds that the provision uses a formula which is not materially different from that which the House of Lords held not to oust judicial review in Anisminic v Foreign Compensation Commission [1969] 2 AC 14.

A majority of the Supreme Court (Lady Hale, Lord Kerr, Lord Carnwath, and Lord Lloyd-Jones) allowed Privacy International’s appeal. Lord Sumption, Lord Reed and Lord Wilson dissented.

Lord Carnwath, giving the lead judgment for the majority, considered that there was an “obvious parallel” with the ouster clause in Anisminic [§2]. The issue was whether the context and the wording (more particularly, the inclusion of the parenthesis to section 67(8)) led to a different result [§3]. Lord Carnwath set out the historical development of the relationship between the High Court and inferior courts and tribunals [§§30-40] and the development of the law on ouster clauses from Anisminic to R (Cart) v Upper Tribunal [2012] 1 AC 663 [§§41-101].

Against this background, he held that “on no ordinary view” could the proper construction of section 5 ISA 1994 be regarded as a decision “as to whether [the IPT] had jurisdiction” [§108] and, in any event, if those words are read in the language of Anisminic, the exclusion only applied to a “legally valid decision relating to jurisdiction” [§109].

Lord Lloyd-Jones, agreeing with Lord Carnwath, added that it is a “necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament”, referring to the exposition by Laws LJ in the Divisional Court in Cart at paras 36-40 [§160].

Lord Carnwath (with whom Lady Hale and Lord Kerr agreed) also considered the second issue on appeal: whether, as a matter of constitutional principle, a statute can ever wholly oust the supervisory jurisdiction of the High Court over a tribunal of limited statutory jurisdiction. He held at [§144]:

 “I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”

Lord Lloyd-Jones did not express a view on the second issue [§168].

The judgment is available here.

Sir Jeffrey Jowell QC, Dinah Rose QC, Ben Jaffey QC, Tom Cleaver and Gayatri Sarathy acted for the Appellant, Privacy International (instructed by Bhatt Murphy).

Sir James Eadie QC acted for the Interested Parties.